Mohan @ Mohanraj v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16.4.2008CORAM:THE HONOURABLE MR.JUSTICE P.D.DINAKARANandTHE HONOURABLE MR.JUSTICE R.REGUPATHICriminal Appeal No.827 of 2007Mohan @ Mohanraj.. Appellant(Accused) Vs.State rep. by Inspector of PoliceChitlapakkam Police StationCrime No.330 of 2003... Respondent(Complainant)Appeal against the judgment dated 4.4.2007 made in Sessions CaseNo.164 of 2006 on the file of Principal Sessions Judge, Chengapattu.For Appellant: Mr.E.J.AyyappanFor Respondent :Mr.N.R.ElangoAddl. Public ProsecutorJ U D G M E N T(Delivered by R.REGUPATHI,J.)The appellant is the sole accused in Sessions Case No.164 of2006 on the file of the learned Principal Sessions Judge,Chengalpattu, whereunder the appellant was convicted for the offencespunishable under Sections 302, 307 and 392 r/w 397 I.P.C. andsentenced him to undergo imprisonment for life under Section 302I.P.C., rigorous imprisonment for seven years under Section 307I.P.C. and rigorous imprisonment for ten years under Section 392 r/w397 I.P.C. Aggrieved against the conviction and sentence, thepresent appeal has been preferred before this Hon'ble Court.2. As per the charge, the appellant on 21.7.2003 at 4.00 p.m.entered into the residence of the deceased and P.W.1 and demandedpayment of money for his expenses and since it was refused, causedinjury on P.W.1, who is the uncle of the appellant aged about 70 https://hcservices.ecourts.gov.in/hcservices/ years at the time of occurrence and also the deceased, who is thewife of P.W.1, and in the result, the deceased succumbed to theinjuries and P.W.1 sustained grievous injuries and in the course ofthe same transaction, the appellant committed robbery of goldnecklace, four bangles and two silver key bunches and therebycommitted the offences punishable under Sections 302, 307 and 392 r/w397 I.P.C. 3. When the appellant was initially questioned, he denied thecomplicity of committing such offences and therefore, trial of thecase was taken up.4. The prosecution examined P.Ws.1 to 17 and marked Exs.P1 toP30 along with M.Os.1 to 14 to substantiate its case.5.1. P.W.1 is the husband of the deceased. Both of them werestaying alone on 21.7.2003 at 3.30 p.m. at their residence at DoorNo.18/A, Kalyanasundaram Street, Muthulakshmi Nagar, Chitlapakkam.P.W.2 Nandhagobi and P.W.4 Satheesh are the sons of the deceased andP.W.1. P.W.3 is the daughter-in-law of the deceased and P.W.1 andwife of P.W.2. P.Ws.2 to 4 went out of the residence at 9 a.m. toattend their job. It is the evidence of P.W.1 that the appellantentered into the residence opening the front door at 3.30 p.m. on21.7.2003 and the appellant has stated that he has had his lunch whenquestioned by P.W.1. Thereafter, the appellant went to the upstairsportion of the house and returned back with a wooden cricket bat,M.O.1. When the appellant demanded money from P.W.1, it was refused.Thereafter, the appellant assaulted P.W.1 with M.O.1 cricket bat onhis head and at that time, the deceased rushed to prevent theassault. The appellant assaulted the deceased also on her head,chest, leg and other parts with M.O.1 bat and the deceased fell down.Even thereafter, the appellant assaulted P.W.1 and he also fell down.The appellant thereafter entered into the room where a bureau waskept and opened the same. P.W.1 thereafter became unconscious.5.2. P.W.3, the wife of P.W.2 and daughter-in-law of thedeceased and P.W.1, returned from her school at 4.30 p.m. and foundthe house locked from outside. However, the noise of the TV wasloudly audible and when she peeped through the window, she found thedeceased and P.W.1 were lying with bleeding injuries. She raisednoise and in the presence of the neighbours, break open the back doorand entered into the house. The deceased with injuries on the head,chest, leg and other places found dead and P.W.1 was found withbleeding injuries on his ears and chin and found M.O.1 cricket batnearby. The bureau was opened and her jewels, bangles and silver keybunch were found missing. Since P.W.1 was in a critical condition,she rang up to P.W.5, her uncle. An auto rickshaw driven by P.W.14was arranged and P.W.1 was sent to the hospital for treatment. Shehas also made an attempt to inform the occurrence to her husbandP.W.2, but she could not do so. https://hcservices.ecourts.gov.in/hcservices/

5.3. P.W.2, son of the deceased and P.W.1, in his evidence hasstated that on 21.7.2003 at 3.15 p.m. he has seen the appellant whenhe returned from his office and when questioned, the appellant statedthat he came to the residence to meet him. At that time, thedeceased and P.W.1 were present in the residence. When he came backfrom the office at 6.00 p.m., he saw a crowd collected in front ofhis house and he was informed by P.W.3 that the deceased and P.W.1were assaulted and since the condition of P.W.1 was critical, he wassent to the hospital. She has also informed that the bureau in thehouse had been broken and jewels were found missing. 5.4. P.W.1, who was initially admitted in the GovernmentHospital, Chrompet, on the advice of the Doctor, was shifted to theGovernment Hospital, Chennai. P.W.4, another son of the deceased andP.W.1 and younger brother of P.W.2, corroborated the evidence ofP.Ws.2 and 3 and stated that he came to the residence after receivinga telephone call from P.W.3, his sister-in-law and reached theGovernment Hospital, Chrompet. It is his further evidence that M.O.1was kept in his room and the room was locked. The key of the lockwas kept in a hook and it will be known only to persons who arefrequently visiting the residence. He has also stated that theappellant used to stay at the residence on his own on previousoccasions.5.5. P.W.5, uncle of P.Ws.2 and 4, who on receipt of telephonecall at 5.15 p.m. from P.W.3, went to the residence of the deceasedand P.W.1 and it was informed by P.W.3 that somebody murdered thedeceased and assaulted P.W.1. Seeing the critical condition ofP.W.1, he has taken him to the Government Hospital, Chrompet with thehelp of P.W.14, auto driver. Since the condition of P.W.1 wascritical, soon after the arrival of P.W.4 to the Government Hospital,Chrompet, P.W.1 was shifted to the Government Hospital, Chennai.Thereafter, he returned back to the residence of the deceased. Atthat time, the Investigating Officer prepared observation mahazar andhe attested the same. 5.6. P.W.17, Inspector of Police, Chitlapakkam Police Station,on receipt of information, reached Government Hospital, Chennai at6.40 p.m. on 21.7.2003, reduced into writing the complaint Ex.P1given by P.W.1, returned back to the police station and registered acase in Crime No.330 of 2003 for the offences punishable underSections 397 and 302. Ex.P19 is the printed FIR. Thereafter, at9.30 p.m. he reached the scene of occurrence and caused thephotographs to be taken through P.W.6, Photographer. M.Os.9 and 10are the photographs and negatives. He also prepared Ex.P2observation mahazar and Ex.P20 rough sketch and recovered M.O.1cricket bat, M.O.6 bloodstained mosaic tile pieces, M.O.7 samplemosaic tile pieces and M.O.8 bloodstained white pillow cover underEx.P3 in the presence of P.W.5 and Sivanandham. He conducted inquest https://hcservices.ecourts.gov.in/hcservices/ over the dead body of the deceased between 11.00 p.m. and 1.30 a.m.and prepared Ex.P21 inquest report in the presence of panchayatdarsand also examined P.Ws.2, 3 and other witnesses and despatched thedead body for conducting post-mortem and further examined P.Ws.5, 6and 14 and recorded their statements. In the hospital, he hasexamined P.Ws.1 and 4 and recorded their statements. He has alsoexamined P.Ws.5, 6 and 14 and recorded their statements. 5.7. P.W.6 Dr.Umeshwari attached to Government Hospital,Tambaram at Chrompet, on receipt of requisition from P.W.17,conducted post-mortem on the body of the deceased and noticed thefollowing injuries:A female body lies on the back with arms by the sides.Eyes closed. Bloody discharge from the nose present. (1) Lacerated injury behind the right ear 5cm x 4cm xbone deep.(2) Lacerated injury over the right side chin 5cm x1cm x 3 cm.(3) Contusion over the left cheek and occipitalregion.On Dissection of Thorax:Pelvis right side fractured 3rd and 4th pelvis sternumfractured in the centre. Heart pale and contain 5ml blood.Liver pale. Lungs pale. Right side and left sideposteriorly congested. Stomach contains blood clots andblackish undigested food particles. Intestine, spleen,kidneys pale. Trachea pale. Hyoid bone intact. Bladdercontain 100ml urine. Skull bone – left side occipital bonefractured. Membranes lacerated and hematoma seen over theleft occipital region and anterior lobe of the brain. She issued Ex.P9 post-mortem certificate. She has opined that thedeceased would appear to have died of shock and haemorrhage due toinjuries sustained. She has further opined that the injuries wouldhave been caused by M.O.1 cricket bat. 5.8. On completion of the post-mortem, P.W.17 recovered M.O.13bloodstained saree pieces and M.O.14 bloodstained petticoat of thedeceased under Form 95 from Police Head Constable along with Ex.P22Special Report. The material objects viz., M.Os.1, 6, 7, 8, 13 and14 were despatched to the Court of Judicial Magistrate, Tambaram, forreceiving chemical analysis report as per Ex.25. Ex.P26 is theCourt's covering letter. 5.9. On 24.7.2003, P.W.17 has examined P.Ws.7 and 8 and recordedtheir statements. It is the statement of P.W.7 that he is working asConductor in the Transport Corporation and he knows the appellant ashe used to travel in his bus. It is his evidence that on 21.7.2003at about 8.30 a.m. when he was in the bus depot, Ayanavaram, the https://hcservices.ecourts.gov.in/hcservices/ appellant met him and sought his assistance to go to the residence ofthe deceased. Since the appellant was not having money, P.W.7 paidRs.10/- and when questioned, the appellant answered that he is goingto meet P.W.1 and the deceased for receiving money. In the eveningat 6.30 p.m., the appellant telephoned him and accordingly, they metnear Noor Hotel, Ayanavaram and at the request of P.W.7, P.W.8, whois related to P.W.7 and working as car driver in a private concern,also joined for a party. Soon after the arrival of the appellant,P.Ws.7 and 8 asked him whether he has received money from P.W.1 andthe deceased, for which he replied that he assaulted his aunt, thedeceased and his uncle, P.W.1. with M.O.1 cricket bat. The deceasedsuccumbed to those injuries and P.W.1 was lying unconscious.Further, it was stated that he has brought a gold necklace, fourbangles and two silver key bunches and since he has no money, herequested P.W.7 to help him to pledge them and to get money. P.W.7took the appellant to P.W.15, Pawn Broker and pledged the goldnecklace and received Rs.5,000/-. Thereafter, at the request of theappellant, he arranged for the purchase of clothes for the appellantand two days later, he realised the blunder committed by him inhelping the appellant and since he worried, on 24.7.2003 he went tothe police station and gave a statement. Thereafter, on 5.8.2003, hehas also given a statement before the learned Judicial Magistrate,Alandur. P.W.8 corroborated the evidence of P.W.7.5.10. P.W.17 during the course of his investigation arrested theappellant on 26.7.2003 at 7.30 a.m. and recorded his voluntarystatement in the presence of P.W.9 and Shanmughanantham. He hasalso recovered M.Os.3 and 4, silver key chains, M.O.5, coveringbangles, M.O.11, bloodstained T shirt and M.O.12, jeans pant underEx.P6 mahazar in the presence of P.W.9. He sent the material objectsviz., M.Os.11 and 12 to the Court of Judicial Magistrate, Tambaram,for receiving chemical analysis report as per Ex.23. Ex.P24 is theCourt's covering letter. He has examined P.W.15, Pawn Broker andrecovered M.O.2 necklace under Ex.P7 in the presence of P.W.9.Exs.P16 and P17 are the pledge receipts. Thereafter, the appellantwas remanded to judicial custody. Statements of P.Ws.9 and 15 havealso been recorded. 5.11. P.W.17 sent Exs.P10 and P13 requisitions to the ChiefJudicial Magistrate for recording statements under Section 164Cr.P.C. and for conducting test identification parade respectively.P.W.12, the learned Judicial Magistrate, Alandur, on receipt ofrequisition, Ex.P11, forwarded by the Chief Judicial Magistrate,Chengalapttu, recorded statements of P.Ws.2, 7 and 8 and Rajaramanunder Section 164 Cr.P.C on 5.8.2003 and Exs.P4, 5 and 12 are thesaid statements. P.W.13, the learned Judicial Magistrate, Ambattur,on receipt of Ex.P14, order from the Chief Judicial Magistrate,conducted test identification parade on 4.8.2003 at Central Jail,Puzhal, Chennai. P.W.2 correctly identified the appellant and Ex.P15is the proceedings of the test identification parade. https://hcservices.ecourts.gov.in/hcservices/

5.12. P.W.16 is the Medical Officer, who treated P.W.1 initiallyon 21.7.2003. P.W.4 was found along with P.W.1 and it was stated byP.W.1 that some unknown assailant assaulted him. He has noted downthe following injuries found on P.W.1 and issued Ex.P18, AccidentRegister."Injuries – dressed wound – neck and ear.Patient conscious H/o LOC present and oriented.Patient admitted in Ward (1)." P.W.10 is the Medical Officer, who continued treatment to P.W.1 andnoted the injuries as per Ex.P8 casuality opinion form."X-ray opinion : x-ray Skull-AP Lat X-ray findings : X-ray PNAS x-ray soft tissue neck x-ray cervical spine-AP Lat (Nc) with fracture Mandible." On 28.7.2003, P.W.4 voluntarily discharged P.W.1 and admitted him inthe private hospital. Exs.P27 and 28 are the chemical analysisreports and Exs.P29 and 30 are the serologist's reports.5.13. P.W.17, after examination of the witnesses and afterreceipt of reports from the Serologist and Medical Officers, filedthe final report on 29.9.2004 against the appellant for the offencespunishable under Sections 392, 397, 307 and 302 I.P.C.6. When the appellant was questioned under Section 313 Cr.P.C.as to the incriminating circumstances found against him in theevidence of prosecution witnesses, he denied the same and claimedinnocence. On the side of the defence, D.W.1, Medical Officerattached to Government Hospital, Chrompet, has been examined. He hasstated that P.W.1 was brought by P.W.5 on 21.7.2003 at 5.30 p.m. andP.W.1 was conscious and stated that he was assaulted with M.O.1 bysome unknown person. Ex.D1 is the wound certificate issued by him.7. The learned Principal Sessions Judge, Chengalpattu, onconclusion of the trial and after hearing the arguments advanced byboth the sides, convicted and sentenced the appellant as aforesaid.Aggrieved by the same, the appellant has filed the present appeal.8.1. The learned counsel for the appellant submits that the casehas been taken on file for investigation after receiving a complaintfrom P.W.1 wherein it is positively stated that the deceased andP.W.1 were assaulted by an unknown person. While so, in theevidence, it is stated that the appellant, known person, who isclosely related, entered into the residence, spoken to them and https://hcservices.ecourts.gov.in/hcservices/ thereafter, brought M.O.1 and assaulted them. Even in the Court atthe time of trial, P.W.1 could not identify for want of clear eyesight. P.W.1 was aged 70 years at the time of occurrence. Theevidence of P.W.1 cannot be taken as true in view of the reason thatthe earlier information given in the form of complaint he has clearlystated that he was assaulted by unknown assailant. Under suchcircumstances, the evidence before the Court cannot be taken as true. 8.2. The extra judicial confession allegedly given by P.Ws.7 and8 cannot be accepted since their evidence is artificial andunnatural. As per the evidence of P.Ws.7 and 8, they have helped theappellant for pledging the jewels after committing the crime andfurther they have also participated in a party on the same day i.e.on 21.7.2003. Two days later, it is their statement that realisingthe blunder committed alleged to have went to the police station andgave a statement. Their conduct cannot be taken as natural and theextra judicial confession allegedly given by the appellant cannot betreated as a material to connect the appellant with the crime. 8.3. It is further submitted that the information regardingtheft of the jewels has already been divulged through the evidence ofP.W.7 on 24.7.2003 itself and under such circumstances, the arrestand recovery subsequently made on 26.7.2003 become inadmissible andthe same cannot be taken as corroborative material for convicting theappellant. 8.4. P.W.2, son of the deceased, would not have visited hisresidence prior to the time of occurrence and the prosecution has notmarked the out-pass for coming out from his office and under suchcircumstances, the evidence of P.W.2 cannot be taken as true. Theevidence of P.W.1 cannot be taken as true since he has givencontradictory version in Ex.P1 as well as in his evidence and undersuch circumstances, the material put forth by the prosecution is notsufficient to foist conviction on the appellant.9.1. Per contra, the learned Additional Public Prosecutorsubmits that it is the categorical evidence of P.W.2 that he has seenthe appellant at the residence viz., the scene of occurrence at thetime when he came back from his office to get a file from hisresidence. Leaving the appellant, he went back to his house and whenhe returned back to his residence in the evening, he found that thedeceased is dead. The appellant had free access to his residencesince he is closely related. 9.2. The evidence of P.W.1 cannot be easily brush aside becauseof the reason that he has initially stated that the assailant isunknown. It is the evidence of P.Ws.2 to 5 that P.W.1 wasunconscious and regained conscious only at the time when he wasadmitted to the hospital. Though the Medical Officers have stated https://hcservices.ecourts.gov.in/hcservices/ that he was conscious, he was not sufficiently fit enough to fix theassailant. That is the reason why the information that the assailantwas not known was referred to in Ex.P18 accident register. Moreover,P.Ws.4 and 5 were present at the side of P.W.1 when the Doctorquestioned P.W.1 and it is those witnesses who do not have knowledgeat all about the occurrence have given such information to theMedical Officers. Thereafter, during the course of inquest, afterexamination of P.Ws.2 and others, the identity of the appellant wasfound out and it was also informed to P.W.1. After fully regainingconscious after three days, P.W.1 came to know that the unknownassailant is no other than the appellant and at the time when he gaveevidence before the trial Court, he positively fixed the assailant asthe appellant. 9.3. The extra judicial confession given by the appellant toP.Ws.7 and 8 cannot be brush aside and it is also corroborated byP.W.15, Pawn Broker. M.O.2 gold necklace was initially pledged inthe name of P.W.7 on 21.7.2003 and subsequently the appellant visitedagain P.W.15 on 24.7.2003 for receiving Rs.5,000/- more andtherefore, the entries found in Exs.P16 and 17 corroborated thetestimony of P.W.7 in addition to the evidence of P.W.15. Theappellant was arrested subsequently on 26.7.2003 and though theinformation about the pledging of the jewels has already been knownto the Investigating Officer divulged from P.Ws.7 and 8, suchstatement has not been taken into account during the course of thetrial since it was submitted to be inadmissible. However, the arrestof the accused and the production of the bangles and bloodstainedclothes cannot be rejected from taking into account for the purposeof corroboration. The bloodstained in the bangles as well as in theclothes of the accused were sent for chemical analysis and it wasfound to contain the blood group of the deceased. Therefore, it issubmitted on behalf of the State that the prosecution has establishedits case beyond reasonable doubts and that the conviction andsentence imposed by the Court below are reasonable and the appealmust be dismissed.10. We have perused the materials available on record and heardthe submissions made by both sides.11.1. The appellant is no other than the sister's son of thedeceased and he was having free access to the residence of P.W.1 andthe deceased. The presence of the appellant at the residence priorto the occurrence was spoken to by P.W.2. Because of the advancedage and assault, P.W.1 lost his balance and could not divulge theassailant as appellant since he was in a critical and depressedcondition. It is his evidence that he became unconscious soon afterthe occurrence. However, the Medical Officers, who treated P.W.1,have given opinion that he was conscious, but he was not in aposition to ascertain as to the person who has committed the crime.Regaining conscious after three days, when information about the https://hcservices.ecourts.gov.in/hcservices/ assailant and his visit was divulged, he has confirmed the identityof the appellant. It is the evidence of P.W.4 that he used to keepM.O.1 under lock and key at his residence and only known persons willbe knowing the place where the key of the room is kept. Under suchcircumstances, coupled with the evidence of P.Ws.2 and 4, we cansafely presume the presence of the appellant at the time ofoccurrence. Even if we disbelieve the evidence of P.W.1, because ofthe contradiction in Ex.P1 and his evidence and giving diverge tohis age and the critical condition at the time of occurrence, thepresence of the appellant last seen in the company of the deceasedcannot be easily brush aside. 11.2. The appellant met P.W.7 before and after the occurrenceand it is only with the help of P.W.7, the jewels stolen from thescene of occurrence had been pledged at the pawn broker shop ofP.W.15. It is also corroborated by the evidence of P.W.8. The extrajudicial confession made by the appellant to P.Ws.7 and 8 forms acorroboration to the commission of the crime by the appellant. Theevidence of P.W.15 also gives lending assurance to the evidence ofP.Ws.7 and 8. Initially, the jewels were pledged for Rs.5,000/- inthe name of P.W.7 accompanied by the appellant. Subsequently, on24.7.2003, the appellant approached P.W.15 on his own and receivedRs.5,000/- more and for both the parties entry has been made in theform of Exs.P16 and 17 by P.W.15. The evidence of P.W.15 and thereceipts give ample corroboration to the testimony of P.Ws.7 and 8.Though the pledging of the jewels were known to the InvestigatingOfficer on 24.7.2003 itself, the production of the material objectsviz., the bangles and the bloodstained clothes of the appellant isadmissible in evidence and the same can be taken as corroborativematerials to substantiate the offence. The blood group found in theclothes of the appellant tallied with the blood group of the deceasedand thereby connected the appellant with the crime. Failure to offerany explanation for the presence of the bloodstains in his clotheswill be a lending assurance to the case put forth by the prosecution.11.3. Admittedly, P.W.1 was critical soon after the occurrenceand he was not in a good condition to divulge about the assailant andthat is the reason why in Ex.P1 it has been stated as unknownassailant, which was recorded at 8.15 p.m. on 21.7.2003 and laterinquest was conducted on the same day between 11.00 p.m. and 1.30a.m. and at that time, through examination of P.W.2 and otherwitnesses, the identity of the appellant was known. Later on, thiswas informed to P.W.1, who during the course of his evidence beforethe trial Court, has positively stated that it was the appellant whohad committed the offence. 11.4. Under such circumstances, we are of the considered opinionthat the prosecution has substantiated its case against the appellantthrough uncontroverted materials oral and documentary and therefore,we do not find any reason to interfere with the conclusion reached by https://hcservices.ecourts.gov.in/hcservices/ the trial Court and the conviction and sentence passed by the trialCourt are confirmed and the appeal stands dismissed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarATRTo1. The Principal Sessions Judge Chengalpattu.2. The Inspector of Police Chitlapakkam Police Station Chennai, Crime No.330 of 2003.3. The Public Prosecutor High Court Madras.4.The Superintendent,Central Prison,Puzhal, Chennai.5.The District Collector, Chennai.6.The Director General of Police, Chennai.Crl.A.No.827 of 2007bv [co]gkg/12.5